Ronald Green Appellant v Petter Saint Jean Respondent [ECSC]

• Jurisdiction: Dominica
• Judge: Mitchell JA [AG.],Pereira CJ,Michel JA,Don Mitchell,Justice of Appeal [Ag.],Janice M. Pereira,Chief Justice,Mario Michel,Justice of Appeal
• Judgment Date: 11 March 2013
• Judgment citation (vLex): [2013] ECSC J0311-6
• Court: Court of Appeal (Dominica)
• Docket Number: DOMHCVAP2012/0001
• Date: 11 March 2013

[2013] ECSC J0311-6

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Janice M. Pereira Chief Justice

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

DOMHCVAP2012/0001

Between:

Ronald Green

Appellant

and

Petter Saint Jean

Respondent

Between:

Maynard Joseph

Appellant

and

Roosevelt Skerrit

Respondent

Appearances:

Mr. Douglas Mendes, SC, with him, Mr. Stuart Young and M

Mr. Geoffrey Letang, for the Appellants

Mr. Anthony Astaphan, SC, with him, Ms. Heather Felix-Evans, for the Respondents

Election petition — Disqualification to be nominated and elected — Allegiance, obedience or adherence to a foreign state — Obtaining, renewing or travelling on a French passport

Respondents not filing any witness statements or defence, and declining to testify at trial — Only petitioners and their witnesses testify — Petitioners unable to produce any direct evidence of the allegations made in their petitions — Whether the petitioners could rely on inferences — Whether petitioners could compel the respondents by process of discovery to produce their passports — Whether the respondents could compel the respondents by subpoena the production of their passports — Whether the petitioners could compel the testimony of the respondents at the hearing of the petitions by subpoena

Foreign law — whether necessary to be pleaded and proved

Allegations were made during an election campaign that two candidates were citizens of France and held French passports. The allegations were never specifically denied, but the candidates claimed to be entitled to be nominated to run in their respective constituencies and to be elected. They were in due course nominated to run and were declared duly elected. The unsuccessful candidates filed election petitions alleging that the successful candidates were disqualified under the Constitution due to their holding French passports. The respondents filed no defence to the petitions and produced no witness statements. They successfully resisted attempts to compel them to produce their passports and to testify at the hearing of the petitions. They did not testify. The petitioners testified and brought witnesses, but were unable by direct evidence to prove the allegations as to the existence of the alleged French passports. The trial judge declined to draw inferences from the failures or otherwise of the respondents that would permit the petitions to succeed. She dismissed the petitions. The petitioners appealed.

The trial judge additionally dismissed the argument of the respondents that the petitioners were obliged to plead and to prove that by virtue of French law the possession by the respondents of French passports amounted to sufficient allegiance, obedience or adherence to a foreign state to disqualify the respondents. The respondents counter appealed.

Held: dismissing the appeals, allowing the respondents' counter-notice in respect of only the foreign law issue (Pereira CJ and Michel JA a majority, Mitchell JA [Ag.] dissenting), and making no order as to costs, that:

• 1. The only rules governing election petitions in the Commonwealth of Dominica are those found in the Elections Act. There are no statutory provisions applying the Civil Procedure Rules 2000 to the hearing of election petitions nor has the court an inherent jurisdiction to introduce the interlocutory procedures found in the Civil Procedure Rules 2000 into election petitions.

  Winston Peters v The Attorney General of Trinidad and Tobago et al & William Chaitan v The Attorney General of Trinidad and Tobago et al Civil Appeal Nos. 21 and 22 of 2001, Republic of Trinidad and Tobago Court of Appeal (delivered 31st July 2001, unreported) distinguished; Ezechiel Joseph v Alvina Reynolds and Lenard "Spider"Montoute v Emma Hippolyte Saint Lucia High Court Civil Appeal No. 14 of 2012 (delivered 31st July 2012, unreported applied; Commonwealth of Dominica Constitution Order 1978, S.I. 1978 No. 1027 (U.K.) cited; House of Assembly (Elections) Act, Chap. 2:01 Revised Laws of the Commonwealth of Dominica 1990 cited; Evidence Ordinance, Cap. 64 Revised Laws of the Commonwealth of Dominica 1961 cited; Civil Procedure Rules 2000 cited.

• 2. Petitioners making specific allegations in their election petitions about the existence of a disqualification must bring the appropriate evidence to prove their allegations.

  Quinn-Leandro v Jonas , Maginley v Fernandez, Spencer v St. Clair Simon (2010) 78 WIR 216 applied.

• 3. The judge having found that there was no direct evidence of the allegations of disqualification made in the petitions, she was entitled to dismiss the petitions.

• 4. Before a court hearing an election petition can draw an adverse inference from the absence or silence of a witness there must be a prima facie case to answer on the issues.

• 5. The burden was on the appellants to have brought the necessary evidence before the court to prove that under the law of France, the respondents being in possession of French passports was an act which amounted to an acknowledgment of allegiance, obedience or adherence to the state of France. It was necessary to plead and produce evidence which would prove the principles of foreign law which would disqualify the respondents under section 32(1)(a) of the Constitution of the Commonwealth of Dominica. (Per Pereira CJ and Michel JA, Mitchell JA [Ag.] dissenting).

  Joyce v Director of Public Prosecutions [1946] AC 347 considered; Abraham Dabdoub v Daryl Vaz and Others and Daryl Vaz v Abraham Dabdoub, Civil Appeal Nos. 45 & 47 of 2008, Supreme Court of Jamaica Court of Appeal (delivered 13 ^th March 2009, unreported) applied.

• 6. It is unnecessary for a person challenging the nomination or election of a person who has obtained, renewed, or travelled on a foreign passport either to plead the foreign law in question or to prove that under that foreign law such action amounts to an acknowledgment of allegiance, obedience or adherence to the foreign state sufficient to establish a disqualification under the Constitution. (Per Mitchell JA [Ag.]).

  Joyce v Director of Public Prosecutions [1946] AC 347 applied; Abraham Dabdoub v Daryl Vaz and Others and Daryl Vaz v Abraham Dabdoub, Civil Appeal Nos. 45 & 47 of 2008, Supreme Court of Jamaica Court of Appeal (delivered 13 ^th March 2009, unreported) applied.

Mitchell JA [AG.]

1 Mr. Petter Saint Jean and Mr. Roosevelt Skerrit were successful candidates in the 18 ^th December 2009 general elections in Dominica. Mr. Ronald Green and Mr. Maynard Joseph were not. They had all been nominated to stand for election in their two constituencies on 2 ^nd December 2009. The latter brought election petitions challenging the validity of the nomination and election of the former.

The Petitions

2 The facts pleaded in the petition by Mr. Joseph against Mr. Skerrit were that at the time of his nomination and at all other material times Mr. Skerrit was a person by his own act under an acknowledgment of allegiance and/or obedience and/or adherence to a foreign power or state, namely the Republic of France. Further, by his public pronouncement on 2 ^nd December 2009 published through radio and other media, Mr. Skerrit declared that he is a citizen of France since June 1972 and that he is the holder of a passport issued by the Government of France. He had used his French passport on the basis of that citizenship in acknowledgment of allegiance and/or obedience and/or adherence to France. He falsely declared in his Statutory Declaration that he was not by virtue of his own act under any acknowledgment of allegiance, obedience, or adherence to a foreign power or State and was qualified to be nominated as a candidate for election to the House of Assembly for the constituency he was contesting. Mr. Skerrit published a letter of 17 ^th December 2009 informing the electors that it was alleged by persons in the local media that because of his dual citizenship and his possession of a foreign passport he was not qualified to be elected and consequently any votes cast for him in the general election would be thrown away. He assured them that he was validly nominated and their votes for him would not be thrown away. He did not specifically deny the allegation that he held a French passport. Mr. Joseph verily believed that by the contents of this letter Mr. Skerrit confirmed that in spite of his dual citizenship and possession of the passport he would stand for election.

3 The pleaded case of Mr. Green against Mr. Saint Jean was similar. The petition stated that Mr. Saint Jean was at all material times by virtue of his own act under acknowledgment of allegiance, obedience and/or adherence to a foreign power or State, namely, the Republic of France of which he was at all material times a citizen and the holder of a passport issued to him between 2000 and 2002 and was thus incapacitated and disqualified from being nominated and elected. Prior to his nomination he had falsely declared in a Statutory Declaration that he was not by virtue of his own act under any acknowledgment of allegiance, obedience or adherence to a foreign power or State and that he was qualified to be nominated as a candidate for election to his constituency.

4 The principal issue for trial before Gertel Thom J was whether Mr. Saint Jean and Mr. Roosevelt Skerrit were disqualified on nomination day 1 from nomination or election by virtue of section 32(1)(a) of the Commonwealth of Dominica Constitution Order 1978 ("the Constitution"). 2

The Direct Evidence

5 The evidence disclosed that both Mr. Saint Jean and Mr. Skerrit were born in Dominica and are Dominican citizens. Their mothers are French citizens, and Mr. Saint Jean and Mr. Skerrit both became French citizens by filiation. It is not in dispute that this inherited second citizenship did not disqualify them, unless they had...